Character Evidence Chart

Trait Evidence

Evidence of a character trait is not admissible to prove that a person acted in conformity with that trait except in the following 4 situations:

Action

1. Element When it is an essential element of a charge, claim or defense - ORE 404(1) Proof: reputation, opinion or acts Really rare in criminal cases. Only example is D’s knowledge of vics prior violent acts in self-defense case. But better treated as not for character trait. See Kirkpatrick, sec. 404.04

2. Defendant’s offer

4. Impeachment

When offered by D to prove When offered by DA to a pertinent trait of D or vic- rebut D’s proof of trait or as tim - ORE 404(2) evidence of Victim’s peacefulness if D says V was 1st Proof: reputation, opinion aggressor. ORE 404(2) (but not acts) Proof: reputation, opinion • That D is law abiding is or acts on cross if D always pertinent. US v Attacking victim does not Hewitt 634 F2 277 open door to attack D. Peacock, 75 OA 217 • May not use vics past D’s testimony opens doors: acts for self-defense unless for D’s mind. • Guritz - “good father” Lunow, 131 OA 429 • Peoples-“I’ve changed”

When offered to prove untruthfulness of a witness or to rebut with evidence of truthfulness. ORE 608

ORE 404, 405, 608, 609

Convictions, ORE 609: Inadmissible unless: • less than 15 yrs old • Felony, dishonesty or DV - 609(2) list • Not expunged • Not reversed • Not an adjudication • Not viol of rt to counsel

Bias is never collateral Proof: Must cross first. Then, if denied, may offer proof by any means. Ev may include prior conduct or statements. Examples (Kirkpatrick p 520): • DA witness is on probation or facing pending charge, or contemplating civil action or threatened a defense witness or a police informant or granted immunity, etc. Ev of the habit of a person or the routine practice of an organization is relevant to prove conformity. Proof: By any means. Does not need corroboration or eyewitnesses. ORE 406(1) Habit: a person’s regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct. 406(2) Examples: • Emp’ee theft - it was routine practice to allow emp’ees to eat food and pay later. Bailey 87 OA 664 • 50 times smoking marijuana at D’s residence is not habit. Maxwell, 172 OA 142 • D always takes X route home

Character Evidence

Bias ORE 609-1

What is the evidence offered to prove?

Impeachment ORE 608, 609, 613

Habit

Moippkiaa

ORE 406

Motive, Opportunity, Intent, Preparation, Plan, Knowledge, Identity, Accident, Absence of Mistake. ORE 404(3) - aka prior bad acts

Other crimes, wrongs or acts may not be used to prove character and conformity but they may be used for narrow purposes like moippkiaa,etc The Johns test, 301 Or 535 (1986): • Ev is relevant for a noncharacter purpose • Proof by preponderance is offered that act was committed by D. Rugemer, 153 OA 400 • Probative value not substantially outweighed by prejudice, confusion, misleading jury, etc. 6 Johns issues when DA is proving intent: Does present charge require proof of intent? Did prior act require intent? Was victim the same or of the same class? Was the type of prior act the same or similar? Were the physical elements of prior similar? Is the probative value outweighed by 403 dangers? Stipulation: stipulating to the fact the DA is trying to prove may keep out bad acts. Prior acquittals may be used (proof by prepond.) Subsequent bad acts may be used

Proof: reputation, opinion or convictions (but not other acts - even on cross) •

D testifies then DA attacks truthfulness, D gets to rebut with ev of truthfulness. Reynolds 324 Or 550

Proof: by public record or admission. 609(1) Prior Inconsistent Stmts: A prior inconsistent stmt may be proved on cross or, alternatively, by extrinsic evidence if the witness is given an opportunity to explain. ORE 613 No opportunity to explain need be given if: Admission of party Interests of Justice dictate Prior inconsistent conduct Hearsay declarant Kirkpatrick, p 551 A prior stmt is inconsistent where witness testifies he is unsure about stmt. Van Gorder, 56 OA 83 (1982) No extrinsic proof of collateral matters

Religion: Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the credibility of the witness is impaired or enhanced. ORE 610

Attacking Witnesses

Attacking Witnesses

3. DA rebuttal